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Ohio’s Legislature Allowed the Oil & Gas Lobby to Dodge the “Emergency Planning and Community Right to Know” Law

Columbus, OH: In a letter received May 31, the U.S. EPA Office in Chicago confirmed the claims of Ohio environmental leaders that a state statute adopted in 2001 favoring the oil and gas industry violates federal laws designed to protect communities facing chemical emergencies.

The letter responded to a petition filed in March by community activist Teresa Mills of Grove City that urged the Agency to take enforcement action against oil and gas drillers that violate the federal safety requirements. The U.S. EPA not only agreed that the Ohio legislature’s sweetheart exemption for oil and gas violates federal law but also confirmed that an investigation is underway on an emergency caused by an oil driller in St. Marys, Ohio, in January, where the federally required safety information had been withheld from local emergency responders.

The federal law involved is the Emergency Planning and Community Right-to-Know Act (“EPCRA”) which was adopted by Congress in 1986 in response to the chemical disaster in Bhopal, India. EPCRA requires that local emergency responders have notice of toxic chemicals stored at industrial sites so they can plan in advance how emergencies involving those chemicals would be handled. EPCRA required industries to report this detailed information to “local emergency planning committees” (“LEPCs”) established in every Ohio county and also to local fire departments. This information would also be assessable by local communities through their local LEPC.

In 2001, the oil and gas industry got around these safety requirements through a new statute, Ohio Revised Code (“ORC”) Section 3750.081, provides that these companies need no longer report the chemicals they have on site to the LEPCs. This statute says that the standard annual filing of a report on the production of oil and gas from a well site with the Oil & Gas Division of the state Department of Natural Resources satisfies all the required EPCRA safeguards in Ohio instead. This “production report” however contains no information whatsoever on the toxic chemicals that first responders may face at a drilling site emergency thus confronting communities and emergency responders with the precise kind of risk that EPCRA was designed to prevent.

Because of this corporate carve-out, when emergency teams responded to complaints of concentrated chemical odors at the St. Mary’s oil well, there was no information on file with the LEPC on the toxins there, see story here. Follow-up research by Ms. Mills confirmed that no significant information on chemicals at oil and gas sites had been filed anywhere in Ohio and that the St. Mary’s situation would therefore be the norm, not the exception. In light of the vast amounts of toxic chemicals involved in the new fracking process exploding across Ohio, the dangers to citizens and first responders created by this exemption are becoming increasingly widespread and dramatically more serious.

In agreeing with environmentalists that this set-up is defective, U. S. EPA concluded that the obligation of oil and gas companies to file the detailed federal chemical reporting forms with the LEPC’s “is not affected by the language of ORC 3750.081.” In other words, the Ohio legislature’s give-away to the oil and gas lobbies “does not supersede the requirements of EPCRA.” The U.S. EPA letter is in accord with Ms. Mill’s contention that any oil and gas driller that does not file the required forms with their local LEPC is subject to prosecution for violating federal law. U.S. EPA’s investigation into the St. Mary’s incident confirms this principle.

“Fracking is more than hazardous enough with the enormous amounts of chemicals involved and an ODNR staff with few resources and a far greater commitment to industry convenience than community safety,” Ms. Mills said. “But removing frackers wholesale from the nation’s basic safeguards against chemical emergencies is beyond the pale. This is the kind of abject corporate favoritism that causes many Ohioans to regard the Ohio legislature with such scorn.”

“There’s nothing special or magical about the chemicals used in fracking that should make them exempt from right-to-know laws,” said Jed Thorp, Manager of the Ohio Sierra Club. “If reporting your chemicals is good enough for every other industry in Ohio, it certainly should be good enough for an industry with a track record of accidental releases like the fracking industry.”

“First responders and the public have an urgent right to know what chemicals may be stored or released in their community. Public safety should always trump corporate convenience. That’s the law of the United States. It also needs to be the law of Ohio” states Jack Shaner, Deputy Director, Ohio Environmental Council.

“This determination by US EPA confirms that the oil and gas industry must follow the same rules as other chemical-intensive industries in Ohio,” states Melissa English, Development Director of Ohio Citizen Action. “We look forward to the day when this critical flow of information begins again between the industry and emergency planners and first responders. “

Ms. Mills says that Ohio community groups will be following the progress of the federal government’s enforcement actions against frackers that fail to file their chemical hazard information and will also be investigating other enforcement options for how citizens can insure that the EPCRA safeguards are in place at local fracking sites.